Custody Modification: Courts Can Do It Without A Petition To Modify If Proper Notice Is Given

Obermayer Rebmann Maxwell & Hippel LLP

A lot of times when parents file petitions with the court regarding enforcing a custody order or contempt, they also want the court to adjust the custody order.  Some think that the court can only change the custody order if a petition to modify custody is filed.  That is not the case.

As long as the petition filed with the court (regardless of whether it is titled a “Petition to Modify Custody”) is clear that the parent wants to also adjust custody, a court may modify custody at the hearing on the petition.  The reason behind this is whether the other parent was put on notice that the person filing the petition wants the court to potentially adjust the custody order.  If the petition does not mention the filing party’s desire to have the court potentially change the custody order, the court should not adjust it.  Why?  Because all litigants should have notice regarding what the filing party is seeking the court to address (this is commonly referred to as due process).

The recent Pennsylvania Superior Court case of CAJ v. DSM, ___ A.3d ___, 2016 PA. Super. 40 (February 18, 2016) reiterated this issue.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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